COURT: On 29 April this year, the accused pleaded guilty to two charges of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance.
In respect of the 1st charge, it is alleged that on 30 August 2022, inside a room in Kwai Shing Industrial Building in Kwai Chung, he unlawfully trafficked in 255 grammes of cocaine narcotic. In respect of the 2nd charge, it is alleged that on 7 September 2022, in a flat in Ching Ho Estate in Sheung Shui, he unlawfully trafficked in 248.3 grammes of cocaine narcotic.
According to the Summary of Facts to which he admitted at the time he pleaded guilty, on 29 August 2022, a delivery company situated in Kwai Chung in Hong Kong received an enquiry through WhatsApp about the service of the company for delivering some mooncakes and groceries to Australia. The enquirer said he would visit the company around 4 pm the next day.
Some time around 4.30 pm on 30 August 2022, the defendant arrived at the Kwai Chung address of the company, taking with him two plastic bags and one paper bag. He said he wanted to send mooncakes to Australia, and wanted to order more mooncakes from the company for sending to Australia. He also confirmed that he was the person who had contacted the company by WhatsApp the day before. However, he was unable to provide the address of the intended recipient in Australia, and he was unable to confirm the exact number of mooncakes that he wanted to order.
Before he left the company, he placed five boxes of mooncakes at the company and said he would return the next day. After his departure, feeling suspicious, staff of the company opened the boxes of mooncakes and found that they did not appear normal, so a report was made to the police. Eventually, in four of the boxes which contained a total of 16 mooncakes, it was found that they concealed a total of 357.9 grammes of a solid containing 255 grammes of cocaine, that is, the subject of the 1st charge.
In the afternoon of 7 September 2022, the police arrived at the residential address of the accused, which is a flat in Ching Ho Estate in Sheung Shui. The accused, his girlfriend and his girlfriend’s father were inside the flat. The accused was inside a bedroom at the time. Upon being arrested and under caution for trafficking in a dangerous drug, he said he engaged in drug trafficking only because he owed someone money, and it had nothing to do with the other people.
Upon a search of the bedroom where he was found, the police found a total of 11 handmade mooncakes with cocaine wrapped inside, and two resealable plastic bags of cocaine. In addition, they also found one mooncake mould, one impulse sealer, a bowl with some white paste, some other bowls, brushes, colouring, lighters, mooncake bags, mooncake boxes and also four mooncakes, and a bag of flour. Upon examination of the 11 handmade mooncakes and the two resealable plastic bags of cocaine, it is confirmed that the total quantity were 368.7 grammes of a solid containing 248.3 grammes of cocaine, that is, the subject of the 2nd charge.
So the total quantity of the drugs seized both at the Kwai Chung address of the company and the flat was 726.6 grammes of a solid containing 503.3 grammes of cocaine with a street value of HK$625,950 if in powder form and HK$1,118,115 if in crack form.
After the house search, the accused was further arrested and cautioned for trafficking in dangerous drug. He admitted
that he had made the mooncakes in which there was “coke”, and it was his original plan to bring them to the company in Kwai Chung the following day for sending them over to Australia. Also, a Samsung mobile phone with a SIM card was found and seized from him.
In a subsequent video-recorded interview with the police, he admitted that about one week before 21 August 2022, someone he knew offered HK$20,000 as a reward for him to make and send mooncakes with the illicit drug concealed inside. On 21 August, he followed the instruction of an unknown man to collect three bags of items which contained some mooncake boxes, the mooncake mould, flour, impulse sealer, drawing brush, paint, the bag of cocaine, the Samsung mobile phone with a SIM card, and the lanterns. Out of the 10 mooncake boxes that he collected, four of them contained four fake mooncakes with cocaine concealed inside, and the other six boxes contained genuine mooncakes. Later, on the same day, he received a telephone call on the Samsung mobile phone and he was instructed to wrap the cocaine inside mooncakes made from doughs. He learned how to make mooncake doughs by watching video clips online, and then he painted the doughs with the paint came in the bags. The next day, he also bought one more drawing brush to paint the mooncakes, then he waited until the mooncakes were dry. He put them into the mooncake bags and sealed the bags with the impulse sealer. On 30 August, he was instructed to take the mooncakes to the company in Kwai Chung, so he contacted the company. However he had not finished making the remaining mooncakes, so he only took five boxes of mooncakes to the company. He intended to provide the delivery address to the company later. The items seized by the police inside his bedroom were for making mooncakes. In particular, the bowl of white paste was a dough. He said that he knew “coke” was an illicit drug and he did not have the habit of consuming illicit drugs.
By his plea of guilty, the accused now admits that on 30 August 2022, he possessed all the drugs concealed inside the mooncakes found at the Kwai Chung company for the purpose of unlawful trafficking. And on 7 September 2022, he possessed all the drugs found inside the flat for the purpose of unlawful trafficking.
The accused was 22 years old at the time of the offence and he is now 23 years old. According to the Criminal Records Bureau, he pleaded guilty to the offence of blackmail yesterday, that is, 3 October this year, in the District Court, yet to be sentenced for that matter. I was informed both by the prosecution and by the defence that that blackmail matter occurred before he committed the present offences, that is, the blackmail was committed in December 2021, and he was arrested and released on bail since December 2021. So clearly the present offences were committed while he was released on bail for other matter.
In mitigation, counsel Mr Freddy Woon informed this court that the accused had completed Form 3 education and that he used to live with a three-year-old son which he had with his ex-girlfriend. His father was a security guard and his mother was a cleaner. And he also has an elder brother who lived apart from the parents. Counsel said he has worked as a plumber earning a daily wage of $800.
Counsel submitted a letter prepared by the accused in mitigation to plead for leniency. In that letter, the accused said that his father could not work because he had chronic disease, and his mother should have retired. His son was three years old and he used to work as a construction worker, the sole breadwinner for the whole family. However, due to the pandemic, he lost his job in the beginning of 2021. He started to have financial difficulty and had a lot of debt. He said he was deeply remorseful and he asks this court to be lenient in sentence. He also indicated that after he was remanded in custody, he believed in Christianity and he has found the rightful sense of value.
In mitigation, counsel asked this court to take into account the fact that even though he was offered a reward of $20,000 to make and send mooncakes with the cocaine concealed inside to Australia through the local delivery company, he was arrested before he was able to complete the delivery, so he did not receive the promised reward from his friend. Counsel urged this court to take into account that he pleaded guilty and fully confessed his culpability to the police upon his arrest.
Counsel rightly recognised that his role was not merely a courier or simply a storekeeper because he was also involved in the wrapping of the cocaine inside the mooncakes. Also painting the finished products and also arranged for the exportation to Australia. However, counsel said he was still at the lower end of the hierarchy in the drug trafficking syndicate, being recruited by a friend called David to send cocaine disguised as normal mooncakes overseas. Counsel urged this court not to consider increasing his sentence for this matter or only impose a small increase in his sentence for this matter.
Counsel rightly recognised that there is an international element which aggravated the offences. However, he said that this court should bear in mind the authority of HKSAR v Yeung Lee Ming Simon [2018] 1 HKLRD 291 and impose an enhancement of 6 months’ to 1 year imprisonment. Counsel urged this court to take into account that he is extremely remorseful, that he would be unable to take care of his young son, and also he had created heavier financial burden on his parents.
In sentencing the accused, I bear in mind the approach enunciated by the Court of Appeal in the case of HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, as clarified by the Court of Appeal in the case of HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186.
The 1st charge involved a total of 255 grammes of cocaine narcotic and the 2nd charge involved a total of 248.3 grammes of cocaine narcotic. Even though the offences were committed on different days, having taken into account the facts and circumstances of this case, I consider it appropriate to sentence him on the overall quantity of the cocaine found in both counts. The total quantity of the cocaine narcotic involved in both counts is 503.3 grammes of cocaine narcotic.
According to the guideline as set down by the Court of Appeal, the tariff for trafficking in heroin is applicable to trafficking in cocaine. For trafficking in between 400 to 600 grammes of cocaine, the sentencing band should lie between 15 to 20 years’ imprisonment. So on an arithmetic calculation, for 503.3 grammes of cocaine, the starting point should be one of 17 years and 7 months’ imprisonment. However, this arithmetic starting point is appropriate only for people like couriers or storekeepers of a drug syndicate who are at the lowest end of the drug hierarchy.
I have taken into account the role and the culpability of this accused. As counsel rightly conceded, he was not only a courier and storekeeper. He was also actively engaged in the packaging and the concealment of the cocaine in the mooncakes, and he even learned how to make mooncakes from videos online in order to conceal the cocaine. He was also actively involved in the arrangement of the exportation to Australia by calling up the delivery company to make enquiry, also delivered the concealed mooncakes to the company himself and made enquiry with them, made the arrangement for the further delivery of other mooncakes the next day.
Having taken into account all the circumstances, his role and culpability, the international element, that his
active involvement in the packaging and the concealment of the cocaine in the mooncakes, I consider that the notional starting point after trial should be one of 19 years’ imprisonment. The case is also further aggravated by the fact that he committed the present offences while he was on bail for another criminal offence, that is, for the blackmail offence, and he was on bail for that matter since December 2021. Yet, in August and September 2022, he committed the present offences. So this is also another aggravating feature.
The notional starting point for taking into account his role and culpability, including the role in packaging and concealing the cocaine in the mooncakes and his involvement in the exportation of the cocaine to Australia should be 18 years and 9 months’ imprisonment. That is the notional starting point after trial. And the other aggravating feature is that the offences were committed while he was released on bail for the blackmail matter, and for this aggravating feature, I add a further 3 months to the notional starting point, so making a total starting point of 19 years’ imprisonment.
I consider that the only mitigating feature or factor that is valid is his guilty plea at an early stage. For that reason, he is entitled to the one-third discount which reduces his sentence down to 12 years and 8 months’ imprisonment. That will be the overall sentence I impose for both counts.
Now, coming back to the individual sentences for Charge 1 and Charge 2. Having taken into account his role and culpability including the packaging of the drugs, concealing them inside the mooncakes and the arrangement for the exportation of the concealed mooncakes to Australia, I consider that in respect of each of the 1st and the 2nd charge, the appropriate overall starting point should be 13 years and 10 months’ imprisonment. That is the total starting point having taken into account of all the aggravating features including the packaging, the international element, and also that the offence was committed while he was on bail. 13 years and 10 months for each of Charge 1 and Charge 2.
In respect of each charge, he is entitled to a full one-third discount, and therefore reducing the sentence to 9½ years for each of Charge 1 and Charge 2. I order that 3 years and 2 months of the sentence in Charge 2 to run consecutively to the sentence in Charge 1.
Thereby, the overall sentence that he has to serve would be 12 years and 8 months’ imprisonment, and this is the sentence I impose for both counts.